Samancor Chrome Ltd (Western Chrome Mines) v Willemse & Others [2023] JOL 59370 (LC)

This was a review application to set aside an arbitration award which stated that the dismissal of the employee was substantively unfair and ordered his reinstatement with retrospective effect.

The facts of the case are as follows:

The employer had an alcohol and drugs procedure policy which followed a zero tolerance for the use of alcohol and drugs in the workplace – “a person shall be deemed unfit to enter the premises in the event that their breath alcohol level exceeds 0.000 percent and if the drug test indicates any illegal substances”.

In other words, access to the workplace would be denied if the employee displayed the slightest indication of alcohol. Where an employee tests positive for drugs or alcohol, the company shall take disciplinary action as this is viewed as gross misconduct which may lead to summary dismissal on the first offence.

The employee was dismissed on 25 March 2019 after being charged with misconduct and testing positive for alcohol on 22 February 2019.

A security guard, Phumla Ngemntu testified that on 22 February 2019 the employee arrived at work and was asked to take a breathalyser test on a Alcoblow Rapid Machine. The test rendered a positive result.

The employee questioned the results and Ngemntu tested him again with the same machine but the results remained positive.

The employee denied that he consumed any alcohol on the day or on the previous evening. Another breathalyzer test was done using a Lion Alcometer 500 machine. The machine returned a positive result and indicated an alcohol content of 0.013%.

At the enquiry, the applicant led the evidence of a Chemical Pathologist, Dr Jaco Broodryk who testified that a blood sample was drawn from the employee and sent to the laboratory, and the results came back negative. The results indicated that the employee’s blood sample had less than 0.010 g/dl alcohol content. This does not mean that the employee did not have any alcohol is his system, “it simply meant that there was no blood alcohol content exceeding 0.010 g/dl, but for all clinical purposes, the result was negative”.

Brookdryk further testified that the blood test was more accurate than a breathalyser test, and that breathalyser test may be false at times, e.g., where a person had not eaten for more than eight hours.

Dr Koekemoer also testified that the employee consulted him after he had been accused of consuming alcohol and took a blood sample to the laboratory which came back negative.

The award

The arbitrator referred to Brookdryk’s evidence that a breathalyser test may at times produce false results, the more reliable test is the blood sample test.

The arbitrator acknowledged that he fully understood that the employer is using a method that is convenient for safety reasons to check if employees are intoxicated, but the Chairperson of the disciplinary hearing should have taken into consideration the laboratory results considering that those are more accurate and reliable results.

The arbitrator concluded that there was no breach of the rule based on the laboratory results and testimony from the expert witnesses.

Review application

The employer placed emphasis on Brookdryk’s evidence that the employee’s blood content could have been between 0.000 g/dl and 0.009 g/dl.

The court held that it was equally possible for the employee’s blood alcohol level to have been 0.000 g/dl. The employer had the onus to show that there was alcohol in the employee's system and the evidence led did not satisfy the onus. In any event, for medical purposes, the results were considered to be negative.

In dealing with the other grounds for review, the court held that the expert witness evidence of Koekemoer and Brookdryk confirmed that the blood tests are more reliable than breathalyser tests.

As a result, the review application was dismissed with costs.

KEY POINTS

1. It must be noted that this case dealt with an instance where there was evidence of a blood test result.
2. It cannot be disputed that blood test results are more accurate than the breathalyser test results.
3. Where an employer has blood result results versus the breathalyser test results, the employer must consider the blood test results as they are more accurate.
4. In the absence of a blood test, employers are also encouraged to record physical qualities of the employee at the time of the test i.e. does the employee smell of alcohol, is there slurred speech, bloodshot eyes or erratic behavior.